Absence felt

Scalia's absence felt in abortion case

Backers of Texas law restricting abortion are hoping Anthony Kennedy can get them a 4-4 tie.

By Josh Gerstein and Jennifer Haberkorn

Justice Antonin Scalia’s unexpected death has recast expectations as the Supreme Court on Wednesday takes up its most significant abortion rights case in almost a decade, but all eyes remain on Justice Anthony Kennedy as the jurist whose vote is all but certain to control the outcome.

While Scalia was considered a sure vote for abortion rights opponents, his absence now effectively limits the downside for abortion rights advocates, creating a kind of insurance for them that the case can’t do grave damage — at least anytime soon.

Even if Kennedy agrees to uphold the Texas clinic-regulation law at issue in the case being argued this week — a big if, given Kennedy’s record of moderation on abortion — the high court appears to lack the five votes needed to issue a ruling that would greenlight such laws across the country.

“If you’re a lawyer for Texas, you wanted Justice Scalia there,” said University of Richmond law professor Kevin Walsh, a former clerk to Scalia.

Michael Dorf, a Columbia law professor who signed a brief urging that the law be declared unconstitutional, said: “What that means is now the best Texas and, more generally, pro-life groups can hope for from this case is a tie and therefore survival of the Texas law and therefore delay of the occasion for the court to resolve this issue nationally.”

The case going before the short-handed court Wednesday involves a Texas law requiring that doctors who perform abortions have admitting privileges at nearby hospitals and mandating that abortion clinics meet requirements similar to those of outpatient surgical centers. Supporters of abortion rights say the requirements will shutter about 10 clinics in the state and leave thousands of women without access to abortion services.

When the lawyers for the two sides square off on Wednesday, Scalia’s absence will be visible in many ways. His chair to the right of Chief Justice John Roberts’ remains vacant and draped in black crepe. Scalia was known for aggressive, unflinching questioning of lawyers appearing before the court. And he often displayed his caustic wit during what he seemed to regard as an intellectual jousting match.

Still, many attorneys are skeptical that Scalia’s pointed arguments would have swayed other justices on such a deeply ingrained issue as abortion. Scalia could sometimes influence the views of his colleagues in cases about free speech or the rights of criminal defendants, attorneys said, but not on abortion cases — and particularly not on one whose outcome seems to hang on Kennedy’s views.

“There’s zero chance Justice Scalia would affect the way Justice Kennedy votes in an abortion case,” Walsh said.

With the court’s liberal flank expected to be deeply suspicious of the Texas law and the court’s now-diminished conservative wing considered hostile to the basic idea of a constitutional right to abortion, Kennedy’s more than two decades of abortion jurisprudence on the high court is expected to form the crucial battleground for Wednesday’s arguments.

Lawyers for both sides are expected to contour their arguments to appeal to the 79-year-old California native, who was appointed to the court in 1988 by President Ronald Reagan.

The key yardstick for the Texas clinic rules is the 1992 opinion Kennedy co-authored (along with former Justices Sandra Day O’Connor and David Souter) in a challenge to Pennsylvania’s abortion laws, Planned Parenthood v. Casey. That opinion reaffirmed the landmark 1973 Roe v. Wade decision and barred regulations that imposed an “undue burden” on abortion rights. The framework Kennedy adopted in that ruling forbids regulations that have “the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.”

In the Casey decision, Kennedy found most of the Pennsylvania law constitutional, including a provision requiring women to get certain information and wait 24 hours before an abortion, as well as a parental consent requirement that allowed a judge to set aside that rule in some circumstances. However, citing a concern about women in abusive relationships, Kennedy and the court voided a provision requiring a married woman to get consent from her husband before getting an abortion.

While Kennedy has stuck with the Casey framework over the past quarter-century, he had his doubts about it before going along with it in 1992. According to the papers of the late Justice Harry Blackmun, Kennedy originally intended to side with the conservatives and overturn Roe altogether, but he flipped his vote later in the process, throwing in with the court’s centrist faction.

Since adopting the “undue burden” test, however, Kennedy has applied it sparingly, giving states and the federal government broad leeway to impose restrictions on abortions.

In 2007, Kennedy angered abortion rights advocates by siding with the court’s conservatives to uphold a federal law banning so-called partial-birth abortion. Writing for the five-justice majority, Kennedy concluded that when medical opinion on the legitimacy of a medical procedure is divided, the state may constitutionally prohibit it.

“Since Casey, he has been consistent in recognizing the right to abortion is one of constitutional significance,” said University of Georgia law professor Randy Beck, who clerked for Kennedy. “The bigger question is how deferential he is willing to be to states on health regulations.”

Beck said Kennedy’s ruling in the 2007 partial-birth ban case “suggests a deferential position and one where he’s not eager to sort of step in and make a medical judgment different than the one the government or legislature did.”

Abortion rights opponents will argue Wednesday that the Texas law doesn’t violate the “undue burden” test Kennedy helped craft 24 years ago.

“My view is that these regulations fit well within his undue burden test and he would uphold that test,” said James Bopp of National Right to Life. “Nothing [Kennedy] has done indicates to me that he has abandoned the undue burden test.”

The Texas case does involve one theme that Scalia often weighed in on: the wisdom of courts trying to look beyond a legislature’s stated purpose to discern whether lawmakers were motivated by some impermissible agenda. Scalia generally regarded such inquiries as fool’s errands, because legislative history is often inconclusive or deliberately misleading.

In the abortion-regulation dispute, Texas and other states claim they are acting to protect the health of women seeking services at abortion clinics. However, the clinics and abortion rights advocates say those arguments are insincere. They note that the legislation was advanced by abortion-rights opponents who have publicly pledged to rein in abortion rights wherever possible.

If the Casey standard governs, discerning the Texas Legislature’s purpose could be critical to whether the law survives. The court’s holding in Casey suggests that if the alleged concerns about women’s health and safety are mere pretexts, the law should be struck down regardless of its impact.

“We know from the record that implementation of these provisions shuts down clinics and forces women to seek medical care long distances from their homes — and, in many case, to travel out of state,” said Kathryn Kolbert, a Barnard College professor who argued the Casey case. “But equally important is that there is no health justification.”

Some lawyers say the Texas law does address serious health concerns and was motivated by public outrage stemming from the case of a squalid Philadelphia abortion clinic, where at least one woman died. The proprietor, Dr. Kermit Gosnell, was convicted of involuntary manslaughter in the woman’s death and of murder for killing three babies after they had been delivered. He is serving a life sentence.

“I think there are good medical reasons to ask for both ambulatory surgical requirements and admitting privileges,” Beck said. “These are serious medical questions, and I don’t go along with the view they are pretexts.”

While Scalia would almost certainly have gone hard at how difficult it is to figure out what led the Legislature to act, Beck said, other justices are sure to raise his perennial concerns on that issue.

“That’s just one of the hard things about trying to figure out the intentions or purposes of a multi-member legislative body, where there are probably dozens of purposes,” Beck said. “I think that’s a point all the justices recognize. I think there’ll be plenty of people making those arguments.”

Some abortion rights advocates hope Kennedy will see the Texas case as part of his legacy, much as he did with a series of gay rights cases that culminated in last June’s 5-4 ruling finding a constitutional right to gay marriage.

“I hope that the part of Justice Kennedy who cares about the reality of peoples’ lives, like he does in gay marriage and individual dignity, will come aboard in this case,” said Drexel University law professor David Cohen.

However, former clerks to Kennedy say he has never seemed to view the abortion issue in the straightforward way he has seen gay rights.

“My sense is he’s more conflicted on this issue, that he sees significant arguments on both sides,” Beck said.

Some of the tea leaves suggest Kennedy could side with the liberals and against the Texas rules. For one thing, he joined with the liberal wing of the court to issue a stay last year that prevented the key provisions in the law from taking effect. All four of his conservative colleagues dissented.

“If you’re the challenger, you take that as a heartening thing, but I’m not taking anything from that,” Walsh said.

If Kennedy votes with the three remaining conservative justices, causing a 4-4 deadlock, there are two possible outcomes. If the justices decide to hang onto the case for reargument after they get a replacement for Scalia, the stay would likely remain in place during that time, which could stretch into next year. However, if the justices formally announce a 4-4 tie, the ruling of the 5th Circuit, which upheld the Texas law, would take full effect.

One reason the court might try to avoid such an action is that it would lead to different legal precedents in different parts of the country. Late last year, the 7th Circuit struck down a similar law in Wisconsin that required doctors who provide abortions to obtain local hospital admitting privileges.

While a reargument would be unusual, it would not be extraordinary. Roe v. Wade, the landmark abortion case, was reargued in 1972 after the retirements of Justices Hugo Black and John Harlan.

“I suspect they will be tempted to hold this one over for reargument after they have a ninth justice on the court,” Beck said. “They were willing to hold Roe itself over. … It might be the kind of case of far-reaching importance where they still see a value in having nine justices. It adds extra legitimacy.”